H1B visas are on the agenda when India’s Commerce and Industry Minister Suresh Prabhu meets Trump’s longtime buddy and US Commerce Secretary Wilbur Ross in Washington DC this week even as the mountain of paperwork gets worse for H1B workers. Ross is Trump's kingpin for a sweeping review of anything under the sun that comes into the ambit of the Buy American Hire American anthem and that includes H1B visas.

The United States Citizenship and Immigration Services has been challenging an ever increasing number of H1B applications in patterns that are becoming clearer as the year winds down.

Up until the end of August this year, 85,000 H1B applications have been questioned under the ‘request for evidence’ (RFE) option that the regulators are spewing out with gusto. Although RFE sounds benign, it invariably delays application processing for weeks or months on end.

File image of Suresh Prabhu. AFP

Cyrus Mehta, top immigration attorney based in New York, says the RFE is a smokescreen for the unstated but obvious resistance to immigration in general and H1B as a favourite whipping boy - “It is not a surprise that when the Administration does not favor a particular visa, the RFE rate increases.”

Going by all that we know of the H1B’s tortuous existence in the nearly 365 days since the Trump win last November, the twin themes of increased scrutiny and outrage against outsiders have both made the H1B journey particularly hard, notwithstanding the many high powered India-US engagements so far or the impending Ivanka Trump visit to India.

Mehta explains the various layers in which the H1B is getting cooked: “The current trend in RFEs on H-1B visas do not just challenge the Level 1 wage, but also whether the position qualifies as a speciality occupation. The RFE also questions the beneficiary’s maintenance of F-1 status under Curricular Practical Training challenging whether the CPT constituted an integral part of the program. At times, evidence is also requested to establish that the company is doing business as stated in the H-1B petition. Many RFEs also challenge the employer-employee relationship under the Neufeld Memo. Even if the H-1B worker is not working at a client site, the RFE still asks for proof that there is sufficient work to employ the H-1B worker in the specialty occupation at the employer’s place of business. Although there has been a general upswing in the issuance of RFEs, H-1Bs appear to be getting hit the hardest.”

Apart from the bucket list that Mehta lays out, there’s also a parallel ongoing streamlining process within the multiple arms of government that police the H1B visa.

Early this year the USCIS put out a comprehensive memo that explained in painstaking detail the many meanings and non meanings of speciality occupation. This memo came out in the time gap after Trump took over and before he signed the Buy American, Hire American executive order that called for a sweeping review of the H1B visa. This memo is important because it underpins the basis of many extra queries that are now going out.

The bulk of requests for evidence that are spewing out relate more to entry level wage workers rather than any other single group.

Although entry level is self explanatory to some extent, this is how the US Department of Labor defines it: “Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment. The tasks provide experience and familiarization with the employer’s methods, practices, and programs. The employees may perform higher level work for training and developmental purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected. Their work is closely monitored and reviewed for accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship are indicators that a Level I wage should be considered.”

This memo rescinded an earlier memo which is clearly outdated in the current scenario.

This paragraph explains the thinking: “While the (earlier) memorandum stated that most programmers had a bachelor’s degree or higher based on information provided by the Handbook, that information is not particularly relevant to a specialty occupation adjudication if it does not also provide the specific specialties the degrees were in and/or what, if any, relevance those degrees had to the computer programmer occupation. Further, the memorandum failed to mention that only “some” of those that had a bachelor’s or higher degree at that time held a degree in “computer science . . . or information systems.”

A Reuters report says that this pushback “which can slow down the issuance of visas by months, were issued at a greater rate in 2017 than at any time in the Obama administration except for one year, 2009, according to USCIS data.”

Overall, if you see this from the Trump administration side, the H1B visa is being beaten into shape even without complicated legislative process. Since 1990, when the Immigration Act was signed into law by Gorge H.W. Bush, till date, the gripes on the H1B have been bilateral, so that’s not new. What’s remarkable in the first one year of Trump is the how well coordinated the backlash has been from multiple arms of the government against this most highly regulated work visa in the United States.

Indians bite off the lion’s share of H1B visas and the relentless scrutiny this year has sent H1B workers scrambling to immigration attorneys in droves.

Until now, general counsels of most companies dealt with H1B issues as a matter of routine. Not any more.

The H1B ‘speciality worker’ is now being subjected to a special kind of onslaught.